A federal judge ruled the U.S. Forest Service (USFS) could force a Montana family living near a federally-controlled wilderness area to let hikers walk through their front yard, despite liability concerns.
U.S. District Court Judge Sam Haddon, a President George W. Bush appointee, ruled the Hudson family had to let hikers walk through their front yard, which is located at the head of a trail entering the Lee Metcalf Wilderness Area in Montana.
The Hudson family did allow people to walk through their ranch, which they have owned since 1968. The Hudsons posted signs around the trail-head for years saying, “Private Property. Please Stay on the Trail” and “Access is provided by gratuitous permission of the landowner.” In the early 1990s, the USFS even posted a sign at the trailhead stating “This is Public Access Across Private Land.”
In 2011, the U.S. Forest Service claimed an easement on the Hudson ranch property so hikers could cross it without permission. USFS wanted the easement to ensure that future landowners couldn’t restrict public access to the nearby trail. The agency did not attempt to establish a compelling public interest for the land.
Judge Haddon sided with USFS, granting them the easement across the Hudson’s ranch. The judge ruled that since there was evidence of numerous individuals using the trail for recreation without directly asking for the Hudson’s permissions, the land was effectively already public land.
“In this particular case, the landowner has always given permission for anyone who wanted to cross into federal land, but that wasn’t good enough,” Terry Anderson, former executive director of the free-market environmental group the Property and Environment Research Center (PERC), told The Daily Caller News Foundation.
“The Forest Service, however, wanted a written easement so that just anybody could cross the family’s property forever. The landowner was willing to pay to relocate the trail, but that wasn’t good enough either,” Andrson said.
The Hudson family spent nearly $1 million trying to defend their property rights from the federal government.
“There are real questions about liability here. If they’re welcoming you onto their land and you break a leg, you could sue the family easily. This is what landowners fear with allowing people to hunt, fish or recreate generally on their land,” Anderson said.
The ruling also has serious implications for how the government obtains access to federal lands through private property. The Hudson case could discourage other landowners from voluntarily letting the public cross their property to get to public parks. Any location where access to public land requires crossing private land risks a major lawsuit.
“Access issues are becoming increasingly contentious not just in Montana but throughout the west,” Anderson said. “The law basically says that if you leave the door of your house open and somebody walks in and starts watching TV on the sofa and doesn’t get stopped, they have the right to continue doing it forever.”
There’s even evidence USFS employees telling the public not to ask permission to cross private property.
District Ranger Alex Sienkiewicz of the Yellowstone district posted in a Facebook group to”NEVER ask permission to access the national Forest Service through a traditional route shown on our maps EVEN if that route crosses private land.”
“By asking permission, one undermines public access rights and plays into their lawyers’ trap of establishing a history of permissive access,” Sienkiewicz wrote.
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